SECOND DIVISION

[G.R. No. 181357. February 2, 2010.]

MALAYAN EMPLOYEES ASSOCIATION-FFW and RODOLFO

MANGALINO, petitioners, vs. MALAYAN INSURANCE
COMPANY, INC., respondent.

DECISION

BRION, J : p

The petitioner Malayan Employees Association-FFW (union) asks us in

this petition for certiorari, 1 to set aside the June 26, 2007 decision 2 and the
November 29, 2007 resolution 3 of the Court of Appeals (CA) in CA-G.R. SP
No. 80691, ruling that the suspension imposed by the respondent Malayan
Insurance Company, Inc. (company) on union member Rodolfo Mangalino
(Mangalino) is valid. Mangalino was suspended for taking a union leave
without the prior authority of his department head and despite a previous
disapproval of the requested leave.
BACKGROUND FACTS
The union is the exclusive bargaining agent of the rank-and-file
employees of the company. A provision in the union's collective bargaining
agreement (CBA) with the company allows union officials to avail of union
leaves with pay for a total of "ninety-man" days per year for the purpose of
attending grievance meetings, Labor-Management Committee meetings,
annual National Labor Management Conferences, labor education programs
and seminars, and other union activities.
The company issued a rule in November 2002 requiring not only the
prior notice that the CBA expressly requires, but prior approval by the
department head before the union and its members can avail of union
leaves. The rule was placed into effect in November 2002 without any
objection from the union until a union officer, Mangalino, filed union leave
applications in January and February, 2004. His department head
disapproved the applications because the department was undermanned at
that time.
Despite the disapproval, Mangalino proceeded to take the union leave.
He said he believed in good faith that he had complied with the existing
company practice and with the procedure set forth in the CBA. The company
responded by suspending him for one week and, thereafter, for a month, for
his second offense in February 2004.
The union raised the suspensions as a grievance issue and went
through all the grievance processes, including the referral of the matter to
the company's president, Yvonne Yuchengco. After all internal remedies
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 failed, the union went to the National Conciliation and Mediation Board for
preventive mediation. When this recourse also failed, the parties submitted
the dispute to voluntary arbitration 4 on the following issues: aSDCIE

1. whether or not Mangalino's suspensions were valid; and

2. whether or not Mangalino should be paid backwages for the

duration of the suspensions.
The Voluntary Arbitrators decided the submitted dispute on November
26, 2004, 5 ruling as follows:
WHEREFORE, in view of the foregoing, this Honorable Office
adjudged the suspension of Mr. Rodolfo Mangalino's on first availment
of union leave invalid while the second suspension valid but illicit in
terms of penalty of thirty (30) days suspension. We consider the
honesty of the same as mitigating circumstances, for the Chairman of
this panel of Arbitrators attested that complainant attended labor
matter in the Office of Voluntary Arbitrator last January 19, 2004 and
February 5, 2004. However, it is good to note the wisdom of Justice
Narvasa in the aforecited Supreme Court Ruling of obey first before you
complain.

In view thereof, this Honorable Office reduced the suspension

from thirty seven (37) days to ten (10) days only. Henceforth, the
Complainant is entitled to twenty seven (27) days backwages.

Proof of payment of backwages should be submitted to the

chairman of this Panel of Arbitrators within ten (10) days from receipt
hereof.

Parties are hereby enjoined to comply in this Award as provided

in the submission Agreement.

SO ORDERED.

Notably, the decision was not unanimous. Voluntary Arbitrator dela Fuente
submitted the following dissent: 6
The act of any employee that can only be interpreted to be an
open and utter display of arrogance and unconcern for the welfare of
his Company thru the use of what he pretends to believe to be an
unbridled political right cannot be allowed to pass without sanction lest
the employer desires anarchy and chaos to reign in its midst.

Hence, having failed to comply with the requirements for

availment of union leaves and for going on such leave despite the
express disapproval of his superior, Mr. Mangalino's two suspensions
are valid and he is not entitled to any backwages for the duration of his
suspensions.

The company appealed the decision to the CA on May 12, 2005

through a petition for review under Rule 43 of the Rules of Court (Rules). In a
decision promulgated on June 26, 2007, the CA granted the company's
petition and upheld the validity of Mangalino's suspension on the basis of the
company's prerogative to prescribe reasonable rules to regulate the use of
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 union leaves. 7 AHSaTI

The union moved for the reconsideration of the CA decision and

received the CA's denial (through its resolution of November 29, 2007) on
December 8, 2007. 8
THE PETITION
The union seeks relief from this Court against the CA decision through
its Rule 65 petition for certiorari filed on February 6, 2008. 9 It alleged that
the CA committed grave abuse of discretion when, despite the clear terms of
the CBA grant of union leaves, it disregarded the evidence on record and
recognized that the company's use of its management prerogative as
justification was proper.
In our Resolution of March 5, 2008, we resolved to treat the Rule 65
petition as a petition for review on certiorari under Rule 45 of the Rules, and
required the respondent company to comment. 10 After comment, we
required the union to file its reply. 11 Thereafter, the parties submitted their
respective memoranda. 12
In its comment, the company raised both procedural and substantive
objections.
It questioned the petition's compliance with the Rules, particularly the
use of a petition for certiorari under Rule 65 to question the CA decision,
when the appropriate remedy is a petition for review on certiorari under Rule
45. The company also asserted that the union violated Section 2, Rule 45
when it failed to attach the material portions of the record as would support
its petition, such as the company's pleadings and the entirety of the
company's evidence. More importantly, it posited that the petition is barred
by time limitation and has lapsed to finality as it was filed sixty-two (62) days
after the union's receipt of the CA decision.
On the substantive aspect, the company mainly contended that the
regulation of the use of union leaves is within the company's management
prerogative, and the company was simply exercising its management
prerogative when it required its employees to first obtain the approval of
either the department head or the human resource manager before making
use of any union leave. Thus, Mangalino committed acts of insubordination
when he insisted on going on leave despite the disapproval of his leave
applications.
In its reply and subsequent memorandum, the union presented its
justification for the technical deficiencies the company cited (quoted below),
and maintained as well that the use of management prerogative was
improper because the CBA grant of the union leave benefit did not require
prior company approval as a condition; any change in the CBA grant
requires union conformity. The union posited as well that any unilateral
change in the CBA terms violates Article 255 of the Labor Code, which
guarantees the right of employees to participate in the company's policy and
decision-making processes on matters directly affecting their interests. It
argued against the company position that it had not objected to the
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 company rule and is now in estoppel.
THE COURT'S RULING
We deny the petition for lack of merit. DTcACa

The company position that the union should have filed an appeal under
Rule 45 of the Rules and not a petition for certiorari is correct. Section 1,
Rule 45 of the Rules states that:
SECTION 1. Filing of petition with Supreme Court. — A party
desiring to appeal by certiorari from a judgment or final order
or resolution of the Court of Appeals, the Sandiganbayan, the
Regional Trial Court or other courts whenever authorized by law, may
file with the Supreme Court a verified petition for review on
certiorari. The petition shall raise only questions of law which must be
distinctly set forth. [Emphasis supplied.]

Complementing this Rule is Section 1, Rule 65 which provides that a

special civil action for certiorari under Rule 65 lies only when "there is no
appeal, nor plain, speedy and adequate remedy in the ordinary course of
law." From this Rule proceeds the established jurisprudential ruling that a
petition for certiorari cannot be allowed when a party fails to appeal a
judgment despite the availability of that remedy, as certiorari is not a
substitute for a lost appeal. 13
In our Resolution of March 5, 2008, we opted to liberally apply the rules
and to treat the petition as a petition for review on certiorari under Rule 45
in order to have a total view of the merits of the petition in light of the
importance of a ruling on the presented issues. The union — which did not
present any justification at the outset for the petition's deficiencies,
particularly for the late filing — had this to say:
9) In a resolution dated 05 March 2008, this Honorable Court
resolved to treat the petition in the above-captioned case as a petition
for review on certiorari under Rule 45 of the Rules of Civil Procedure.
All along the petitioner thought that the filing of the petition for
certiorari under Rule 65 is appropriate considering that the ground
raised is grave abuse of discretion by the Honorable Court of Appeals
for reversing the decision of the majority decision of the Panel of
Voluntary Arbitration in arbitrary and whimsical manner.
10) For having treated this petition under Rule 45 of the
Rules of Civil Procedure, petitioner humbly admits that delay was
incurred in the filing thereof, such delay was caused by several factors
beyond control such as the transfer of handling legal assistant to
another office and the undersigned had to reassign the case for the
preparation of the petition. Furthermore, the undersigned counsel,
other than being the Chief of FFW LEGAL CENTER is also the Vice
President of the Federation of Free Workers (FFW), who has to attend
similar and urgent pressing problems of local affiliates arising from the
effects of contracting out and closure of companies.

11) Considering the issue to be resolved requires only two

CBA provisions — (1) the recognition of management prerogative
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 (Section 1, Article III of the CBA), and union leave (Section 3, Article XV
of the CBA) to guide the Honorable Court reached (sic) a decision,
petitioner honestly thought that the other pleadings referred to by
respondent are not relevant. AHDcCT

With this kind and tenor of justification, we appear to have acted with
extreme liberality in recognizing the petition as a Rule 45 petition and in
giving it due course. We cannot extend the same liberality, however, with
respect to the union's violation of the established rules on timelines in the
filing of petitions, which violations the company has kept alive by its
continuing objection. While we can be liberal in considering the mode of
review of lower court decisions (and even in the contents of the petition
which the company insists are deficient), we cannot do the same with
respect to the time requirements that govern the finality of these decisions.
A final judgment can no longer be disturbed under the combined application
of the principles of immutability of final judgments 14 and res judicata, 15
subject only to very exceptional circumstances not at all present in this case.
16

Under Rule 45, a petition for review on certiorari should be filed within
15 days from notice of judgment, extendible in meritorious cases for a total
of another 30 days. 17 Given that a Rule 45 petition is appropriate in the
present case, the period of 60 days after notice of judgment is way past the
deadline allowed, so that the CA decision had lapsed to finality by the time
the petition with us was filed. This reason alone — even without considering
the company's other technical objection based on the union's failure to
attach relevant documents in support of the petition — amply supports the
denial of the petition.
The lack of merit of the petition likewise precludes us from resolving it
in the union's favor. In short, we see no reversible error in the CA's ruling.
While it is true that the union and its members have been granted
union leave privileges under the CBA, the grant cannot be considered
separately from the other provisions of the CBA, particularly the provision on
management prerogatives where the CBA reserved for the company the full
and complete authority in managing and running its business. 18 We see
nothing in the wordings of the union leave provision that removes from the
company the right to prescribe reasonable rules and regulations to govern
the manner of availing of union leaves, particularly the prerogative to
require prior approval. Precisely, prior notice is expressly required under the
CBA so that the company can appropriately respond to the request for leave.
In this sense, the rule requiring prior approval only made express what is
implied in the terms of the CBA.
In any event, any doubt in resolving any interpretative conflict is
settled by subsequent developments in the course of the parties'
implementation of the CBA, specifically, by the establishment of the
company regulation in November 2002 requiring prior approval before the
union leave can be used. The union accepted this regulation without
objection since its promulgation (or more than a year before the present
dispute arose), and the rule on its face is not unreasonable, oppressive, nor
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 violative of CBA terms. Ample evidence exists in the records indicating the
union's acquiescence to the rule. 19 Notably, no letter from the union
complaining about the unilateral change in policy or any request for a
meeting to discuss this policy appears on record. The union and its members
have willingly applied for approval as the rule requires. 20 Even Mangalino
himself, in the past, had filed applications for union leave with his
department manager, and willingly complied with the disapproval without
protest of any kind. 21 Thus, when Mangalino asserted his right to take a
leave without prior approval, the requirement for prior approval was already
in place and established, and could no longer be removed except with the
company's consent or by negotiation and express agreement in future CBAs.
SaITHC

The "prior approval" policy fully supported the validity of the

suspensions the company imposed on Mangalino. We point out additionally
that as an employee, Mangalino had the clear obligation to comply with the
management disapproval of his requested leave while at the same time
registering his objection to the company regulation and action. That he still
went on leave, in open disregard of his superior's orders, rendered
Mangalino open to the charge of insubordination, separately from his
absence without official leave. 22 This charge, of course, can no longer
prosper even if laid today, given the lapse of time that has since transpired.
In light of the petition's procedural infirmities, particularly its late filing
that rendered the CA decision final, and the petition's lack of substantive
merit, denial of the petition necessarily follows.
WHEREFORE, premises considered, we DENY the petition for lack of
merit. Costs against the petitioners.
SO ORDERED.
Carpio, Corona, * Velasco, Jr. ** and Perez, JJ., concur.

Footnotes
* Designated additional Member of the Second Division vice Associate Justice
Mariano C. Del Castillo, per Raffle dated January 25, 2010.
** Designated additional Member of the Second Division vice Associate Justice
Roberto A. Abad, per Special Order No. 820 dated January 25, 2010.
1. Under Rule 65 of the Revised Rules of Civil Procedure; rollo, pp. 3-22.
2. Penned by Associate Justice Arcangelita Romilla-Lontok, with the
concurrence of Associate Justice Mariano Del Castillo (now a member of this
Court) and Associate Justice Romeo Barza; id. at 26-32.
3. Id. at 39.
4. The Voluntary Arbitrators are Herminigildo Javen, Atty. Marcial de la Fuente
and Allan Montano.
5. Rollo, pp. 179-191.
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 6. Id. at 192-201.
7. Id. at 26-32.
8. Id. at 39.
9. Id. at 3-20.
10. Id. at 40.
11. Id. at 280.
12. Id. at 291-341.
13. Bernardo v. Court of Appeals, 341 Phil. 413 (1997); see also Macawiag v.
Balindog, G.R. No. 159210, September 20, 2006, 502 SCRA 454, 465-66.
14. See Coca-Cola Bottlers Philippines, Inc., Sales Force Union-PTGWO-BALAIS
v. Coca-Cola Bottlers, Philippines, Inc., G.R. No. 155651, July 28, 2005, 464
SCRA 507.
15. See Allied Banking Corporation v. Court of Appeals, G.R. No. 108089,
January 10, 1994, 229 SCRA 252.
16. The immutability doctrine admits several exceptions, like: (1) the correction
of clerical errors; (2) the so-called nunc pro tunc entries that cause no
prejudice to any party; (3) void judgments; and (4) whenever circumstances
transpire after the finality of the decision rendering its execution unjust and
inequitable. Temic Semiconductors, Inc. Employees Union [TSIEU-FFW] v.
Federation of Free Workers [FFW], G.R. No. 160993, May 20, 2008, 554 SCRA
122.)
17. Rule 45, Section 2 of the Rules of Court states:
Section 2. Time for filing; extension. — The petition shall be filed within
fifteen (15) days from notice of the judgment or final order or resolution
appealed from, or of the denial of the petitioner's motion for new trial or
reconsideration filed in due time after notice of the judgment. On motion duly
filed and served, with full payment of the docket and other lawful fees and
the deposit for costs before the expiration of the reglementary period, the
Supreme Court may for justifiable reasons grant an extension of thirty (30)
days only within which to file the petition.
18. Article III, Section 1 of the CBA provides:

The Union hereby recognizes that the Company shall have full and exclusive
direction and control of the management of the Company and direction of its
employees . . . and the right to make and enforce Company rules to carry out
the functions of management.
19. Rollo , pp. 118-136.
20. Id. at 118-126.
21. Id. at 127-129, 132-134.
22. See GTE Directories Corporation v. Sanchez, 274 Phil. 738 (1991) which
held:

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 To sanction disregard or disobedience by employees of a rule or
order laid down by management, on the pleaded theory that the rule
or order is unreasonable, illegal, or otherwise irregular for one
reason or another, would be disastrous to the discipline and order
that it is in the interest of both the employer and his employees to
preserve and maintain in the working establishment and without
which no meaningful operation and progress is possible. Deliberate
disregard or disobedience of rules, defiance of management authority cannot
be countenanced. This is not to say that the employees have no remedy
against rules or orders they regard as unjust or illegal. They may object
thereto, ask to negotiate thereon, bring proceedings for redress against the
employer before the Ministry of Labor. But until and unless the rules or
orders are declared to be illegal or improper by competent
authority, the employees ignore or disobey them at their peril. It is
impermissible to reverse the process: suspend enforcement of the orders or
rules until their legality or propriety shall have been subject of negotiation,
conciliation, or arbitration. [Emphasis supplied.]

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